As filed with the Securities and Exchange Commission on June 13, 2019

 

Registration No. 333-

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S‑8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

Reata Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

 

11-3651945

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer

Identification Number)

 

2801 Gateway Drive; Suite 150

Irving, TX 75063

(972) 865-2219

 

(Address, including zip code, and telephone number,
including area code, of Registrant’s principal executive offices)

 

Reata Pharmaceuticals, Inc.

Second Amended and Restated Long Term Incentive Plan

(Full title of the plan)

 

J. Warren Huff

Chief Executive Officer

Reata Pharmaceuticals, Inc.

2801 Gateway Drive, Suite 150

Irving, TX 75063

(972) 865-2219

 

(Name, address, including zip code, and telephone number,
including area code, of agent for service)

 

Copies to:

 

Robert L. Kimball
3700 Trammell Crow Center

2001 Ross Avenue

Dallas, TX 75201

(214) 220-7700

Michael D. Wortley

Chief Legal Officer

Reata Pharmaceuticals, Inc.

2801 Gateway Drive, Suite 150

Irving, TX 75063

(972) 865-2219

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.  See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

Large accelerated filer

☐

 

 

Accelerated filer  

☒

Non-accelerated filer

☐

 

 

Smaller Reporting Company  

☐

 

 

 

 

Emerging Growth Company  

☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒


 

 

CALCULATION OF REGISTRATION FEE

 

Name of Plan

Title of securities

to be registered

Amount to be

registered (1)

Proposed

maximum offering

price per share (2)

Proposed

maximum aggregate

offering price (2)

Amount of

registration fee (3)

Reata Pharmaceuticals, Inc. Second Amended and Restated Long Term Incentive Plan

Class A common stock, par value $0.001 per share

2,607,487

$87.84

$229,041,658

$27,759.85

Reata Pharmaceuticals, Inc. Second Amended and Restated Long Term Incentive Plan

Class B common stock, par value $0.001 per share

2,607,487

$87.84

$229,041,658

$0

Total

 

 

 

 

$27,759.85

(1)

Shares of Reata Pharmaceuticals, Inc. (the “Registrant”) may be issued under the Reata Pharmaceuticals, Inc. Second Amended and Restated Long Term Incentive Plan, as amended from time to time (the “Plan”) up to the maximum number reserved thereunder.  Awards may be granted under the Plan with respect to either Class A common stock or Class B common stock of the Registrant (each counting equally against the aggregate total reserved).  On June 12, 2019, the shareholders of the Registrant approved the Plan, increasing the total shares of Class A common stock or Class B common stock that may be issued under the Plan to 6,804,443 (the “Restatement”). This Form S-8 Registration Statement (the “Registration Statement”) registers an additional 2,607,487 shares of each of Class A common stock and Class B common stock in connection with the Restatement, which includes shares intended to account for the gross counting method used to count the registration of shares on Form S-8 and the net share counting provisions of the Plan. For purposes of clarity, no more than an additional 2,607,487 shares of any class will be issued under the Plan with respect to new awards pursuant to this Registration Statement.  Additionally, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional shares of Class A common stock and Class B common Stock of the Registrant as may become issuable pursuant to the adjustment provisions of the Plan.

(2)

Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(h) under the Securities Act. The price for the Class A common stock and Class B common stock being registered hereby is based on a price of $87.84 per share of Class A common stock, which is the average of the high and low trading prices for a share of Class A common stock of the Registrant as reported on the NASDAQ Global Market on June 6, 2019.

(3)

Pursuant to General Instruction E to Form S-8, a registration fee is only being paid with respect to the registration of an additional 2,607,487 aggregate shares of either Class A common stock or Class B common stock under the Plan.

EXPLANATORY NOTE

The Registrant is filing this Registration Statement pursuant to General Instruction E of Form S-8 to register the offer and sale of an aggregate of an additional 2,607,487 shares of Class A and Class B common stock that may be issued under the Plan. These additional shares of common stock have become reserved for issuance as a result of the Restatement, which was approved by the Registrant’s shareholders on June 12, 2019.

The contents of the Registrant’s registration statements on Form S-8 relating to the Plan, which were filed with the Securities and Exchange Commission (the “Commission”) on May 27, 2016 (File No. 333-211682), March 3, 2017 (File No. 333-216412), March 2, 2018 (File No. 333-223407) and February 28, 2019 (File No. 333-229954), are incorporated by reference into this Registration Statement, as permitted by General Instruction E of Form S-8.

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. Ex hibits.  

 

Exhibit Number

 

Description

 

 

 

  4.1

 

Thirteenth Amended and Restated Certificate of Incorporation of Reata Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.7 to the Registrant’s Form S-1 Registration Statement (File No. 333-208843), filed on May 16, 2016).

 

 

 

  4.2

 

Second Amended and Restated Bylaws of Reata Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-37785), filed on December 7, 2016).

 

 

 

  4.3

 

Reata Pharmaceuticals, Inc. Second Amended and Restated Long Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-37785), filed on May 9, 2019).

 

 

 

  4.4

 

Stock Option Agreement (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-37785), filed on May 9, 2019).

 

 

 

  4.5*

 

Notice of Stock Option Grant for employees and directors/consultants.

 

 

 

5.1*

 

Opinion of Vinson & Elkins LLP as to the legality of the securities being registered.

 

 

 

23.1*

 

Consent of Vinson & Elkins LLP (contained in Exhibit 5.1).

 

 

 

23.2*

 

Consent of Ernst & Young LLP, an Independent Registered Public Accounting Firm.

 

 

 

24.1*

 

Powers of Attorney (included on the signature page of this Registration Statement).

 

*Filed herewith


 

 

SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irving, State of Texas on June 13, 2019.

 

REATA PHARMACEUTICALS, INC.

 

 

 

By:

 

/s/ J. Warren Huff

 

 

Name: J. Warren Huff

 

 

Title: Chief Executive Officer and President

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints J. Warren Huff, and Jason D. Wilson, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully and to all intents and purposes as they might or could not in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on June 13 , 2019.

 

Signature

 

Title

 

 

 

/s/ J. Warren Huff

 

President, Chief Executive Officer and Chairman of the Board of Directors 

J. Warren Huff

 

(Principal Executive Officer)

 

 

 

/s/ Jason D. Wilson

 

Chief Financial Officer

Jason D. Wilson

 

(Principal Financial Officer)

 

 

 

/s/ Elaine Castellanos

 

Vice President, Chief Accounting Officer

Elaine Castellanos

 

( Principal Accounting Officer )

 

 

 

/s/ James E. Bass

 

Member of the Board of Directors

James E. Bass

 

 

 

 

 

/s/ William D. McClellan, Jr.

 

Member of the Board of Directors

William D. McClellan, Jr.

 

 

 

 

 

/s/ R. Kent McGaughy, Jr

 

Member of the Board of Directors

R. Kent McGaughy, Jr.

 

 

 

 

 

/s/ Jack B. Nielsen

 

Member of the Board of Directors

Jack B. Nielsen

 

 

 

 

 

/s/ William E. Rose

 

Member of the Board of Directors

William E. Rose

 

 

 

 

 

Exhibit 4.5

 

Date

 

Notice of Grant of Stock Option

(Employee)

 

 

Award Details

 

Name : Address : Employee ID : Award Amount : Grant ID :Grant Date : Award Type : Vesting Schedule :Vesting Start Date :Vesting End Date :Expiration Date : Deadline to Accept : 30 days from grant notification

 

 

Award Vesting Summary

The Option Shares shall be deemed “Nonvested Shares” unless and until they have become “Vested Shares,” as defined below.  The Option Shares will become “Vested Shares” as detailed in the table above; provided, however, that the vesting of the Option Shares shall be subject to the standard methodology for handling fractions of Vested Shares that is applied by the Company’s third-party Option administrator; provided further, however, that, except as otherwise provided in the Stock Option Agreement (the “Agreement”), such Nonvested Shares will become Vested Shares on such dates only if you remain in the employ of or a service provider to the Company or its Subsidiaries continuously from the Date of Grant through the applicable vesting date.

Notwithstanding the foregoing, following a Change in Control, any Option Shares that are Nonvested Shares on the date of the Change in Control shall become Vested Shares with respect to one eighteenth of all such Nonvested Shares on the one month anniversary of the Change in

 

 

Control and thereafter with respect to an additional one eighteenth of all such Nonvested Shares at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the Option Shares will be 100% Vested Shares on the eighteenth month anniversary of the Change in Control, in each case, so long as you remain in the employ of or a service provider to the Company or its Subsidiaries continuously from the Date of Grant through the applicable vesting date; provided, however, that if 100% of the Option Shares would otherwise become Vested Shares pursuant to the vesting rules set forth in the preceding paragraph prior to the eighteenth month anniversary of the date of the Change in Control, then the Option Shares will become Vested Shares in accordance with such vesting rules.

This Option shall not be exercisable for a fraction of an Option Share, and on the date that this Option is no longer exercisable, any fraction of an Option Share, unless otherwise determined by the Committee, shall be canceled and terminated without consideration.

Online Grant Acceptance

By your acceptance of this Option, you hereby acknowledge your receipt of this Option granted on the Date of Grant indicated above, which has been issued to you under the terms and conditions of this Notice of Grant, the Second Amended and Restated  Long Term Incentive Plan (the ”Plan”) and the Agreement, including the vesting and risk of forfeiture provisions set forth therein. Capitalized terms used but not defined in this Notice of Grant shall have the meanings set forth in the Plan.

By your acceptance of this Option, you agree to the following provisions of this paragraph. You understand and acknowledge that if the purchase price of the Stock under this Option is less than the Fair Market Value of such Stock on the date of grant of this Option, then you may incur adverse tax consequences under sections 409A and/or 422 of the Code.  You acknowledge and agree that (a) you are not relying upon any determination by the Company, its affiliates, or any of their respective employees, directors, officers, attorneys or agents (collectively, the “Company Parties”) of the Fair Market Value of the Stock on the Date of Grant, (b) you are not relying upon any written or oral statement or representation of the Company Parties regarding the tax effects associated with your acceptance of this Option and your receipt, holding and exercise of this Option, and (c) in deciding to accept this Option, you are relying on your own judgment and the judgment of the professionals of your choice with whom you have consulted.  You hereby release, acquit and forever discharge the Company Parties from all actions, causes of actions, suits, debts, obligations, liabilities, claims, damages, losses, costs and expenses of any nature whatsoever, known or unknown, on account of, arising out of, or in any way related to the tax effects associated with your acceptance of this Option and your receipt, holding and exercise of this Option. You consent to receive documents from the Company and any plan administrator by means of electronic delivery, provided that such delivery complies with applicable law, including, without limitation, documents pursuant or relating to any equity award granted to you under the Plan or any other current or future equity or other benefit plan of the Company (collectively, a “Company Plan”).  This consent shall be effective for the entire time that you are a participant in a Company Plan.


 

 

Date

 

Notice of Grant of Stock Option

(Director/Consultant)

 

 

Award Details

 

Name : Address : Employee ID : Award Amount : Grant ID :Grant Date : Award Type : Vesting Schedule :Vesting Start Date :Vesting End Date :Expiration Date : Deadline to Accept : 30 days from grant notification

 

 

Award Vesting Summary

The Option Shares shall be deemed “Nonvested Shares” unless and until they have become “Vested Shares,” as defined below.  The Option Shares will become “Vested Shares” as detailed in the table above; provided, however, that the vesting of the Option Shares shall be subject to the standard methodology for handling fractions of Vested Shares that is applied by the Company’s third-party Option administrator; provided further, however, that, except as otherwise provided in the Stock Option Agreement (the “Agreement”), such Nonvested Shares will become Vested Shares on such dates only if you remain a director or employee of or a service provider to the Company or its Subsidiaries continuously from the Date of Grant through the applicable vesting date.

Notwithstanding the foregoing, in the event of (i) a Change of Control, (ii) a separation from service by reason of death, or (iii) a separation from service by reason of Disability (as defined in the Agreement), any Option Shares that are Nonvested Shares on the date of such event shall become Vested Shares on such date.

 

 

This Option shall not be exercisable for a fraction of an Option Share, and on the date that this Option is no longer exercisable, any fraction of an Option Share, unless otherwise determined by the Committee, shall be canceled and terminated without consideration.

Online Grant Acceptance

By your acceptance of this Option, you hereby acknowledge your receipt of this Option granted on the Date of Grant indicated above, which has been issued to you under the terms and conditions of this Notice of Grant, the Second Amended and Restated Long Term Incentive Plan (the “Plan”) and the Agreement, including the vesting and risk of forfeiture provisions set forth therein. Capitalized terms used but not defined in this Notice of Grant shall have the meanings set forth in the Plan.

By your acceptance of this Option, you agree to the following provisions of this paragraph. You understand and acknowledge that if the purchase price of the Stock under this Option is less than the Fair Market Value of such Stock on the date of grant of this Option, then you may incur adverse tax consequences under sections 409A and/or 422 of the Code.  You acknowledge and agree that (a) you are not relying upon any determination by the Company, its affiliates, or any of their respective employees, directors, officers, attorneys or agents (collectively, the “Company Parties”) of the Fair Market Value of the Stock on the Date of Grant, (b) you are not relying upon any written or oral statement or representation of the Company Parties regarding the tax effects associated with your acceptance of this option and your receipt, holding and exercise of this Option, and (c) in deciding to accept this Option, you are relying on your own judgment and the judgment of the professionals of your choice with whom you have consulted.  You hereby release, acquit and forever discharge the Company Parties from all actions, causes of actions, suits, debts, obligations, liabilities, claims, damages, losses, costs and expenses of any nature whatsoever, known or unknown, on account of, arising out of, or in any way related to the tax effects associated with your acceptance of this Option and your receipt, holding and exercise of this Option. You consent to receive documents from the Company and any plan administrator by means of electronic delivery, provided that such delivery complies with applicable law, including, without limitation, documents pursuant or relating to any equity award granted to you under the Plan or any other current or future equity or other benefit plan of the Company (collectively, a “Company Plan”).  This consent shall be effective for the entire time that you are a participant in a Company Plan.

 

 

Exhibit 5.1

 

June 13, 2019

Reata Pharmaceuticals, Inc.

2801 Gateway Drive; Suite 150

Irving, TX 75063

Ladies and Gentlemen:

We have acted as counsel for Reata Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the Company’s registration under the Securities Act of 1933, as amended (the “Act”), of the offer and sale of up to 2,607,487 shares of either the Company’s Class A common stock, par value $0.001 per share or Class B common stock, par value $0.001 per share (the “Shares”), pursuant to the Company’s registration statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) on June 13, 2019, which Shares may be issued from time to time in accordance with the terms of the Reata Pharmaceuticals, Inc. Second Amended and Restated Long Term Incentive Plan (the “Plan”).

In reaching the opinions set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments as we deemed necessary or advisable for purposes of this opinion, including (i) the Registration Statement, (ii) certain resolutions adopted by the board of directors of the Company, (iii) the Plan, and (iv) such other certificates, instruments, and documents as we have considered necessary for purposes of this opinion letter.  As to any facts material to our opinions, we have made no independent investigation or verification of such facts and have relied, to the extent that we deem such reliance proper, upon certificates of public officials and officers or other representatives of the Company.  

We have assumed (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authority of all persons signing all documents submitted to us on behalf of the parties to such documents, (iv) the authenticity of all documents submitted to us as originals, (v) the conformity to authentic original documents of all documents submitted to us as copies, (vi) that all information contained in all documents reviewed by us is true, correct and complete, and (vii) that the Shares will be issued in accordance with the terms of the Plan.

Based on the foregoing and subject to the limitations set forth herein, and having due regard for the legal considerations we deem relevant, we are of the opinion that the Shares have been duly authorized and, when the Shares are issued by the Company in accordance with the terms of the Plan and the instruments executed pursuant to the Plan, as applicable, that govern the awards to which any Share relates, the Shares will be validly issued, fully paid and non-assessable.

This opinion is limited in all respects to the General Corporation Law of the State of Delaware.  We express no opinion as to any other law or any matter other than as expressly set forth above, and no opinion as to any other law or matter may be inferred or implied herefrom.  The opinions expressed herein are rendered as of the date hereof and we expressly disclaim any obligation to update this letter or advise you of any change in any matter after the date hereof.  

 

Vinson & Elkins LLP  Attorneys at Law

Austin  Beijing  Dallas  Dubai  Hong Kong  Houston  London  New York  Richmond  Riyadh  San Francisco  Tokyo  Washington

 

Trammell Crow Center, 2001 Ross Avenue, Suite 3700

Dallas, TX 75201-2975

Tel +1.214.220.7700   Fax +1.214.220.7716 www.velaw.com

 

 

Reata Pharmaceuticals, Inc.  June 13, 2019    Page 2

 

This opinion letter may be filed as an exhibit to the Registration Statement.  In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours,

 

 

/s/ Vinson & Elkins L.L.P.

 

Vinson & Elkins L.L.P.

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Reata Pharmaceuticals, Inc. Second Amended and Restated Long Term Incentive Plan of Reata Pharmaceuticals, Inc. of our report dated February 28, 2019, with respect to the consolidated financial statements of Reata Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Dallas, Texas

June 13, 2019